NUMBER 13-06-240-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ELTON ADAMCEK, ET AL., Appellants,

v.

REYNOLDS METALS COMPANY, ET AL., Appellees.

 

On appeal from the 23rd District Court 

of Wharton County, Texas.

 

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Benavides 

Memorandum Opinion by Justice Rodriguez
 There are ninety-seven appellants: Elton and Helen Adamcek; Rosetta Anderson; John and Alven 1

Ashford; John Ashford, Jr.; Esther Ball; Eloise Barnes, individually and next friend of Janaysha Barnes; Vernon

Caesar III; Norisha Halloway and Sherpirice Halloway; Evelyn Barnes; Alice Baylor; Ella Mae Bell; Pearl

Bennett; Charlotte Brown; Eddie and Gertie Brown; Kevin Brown, individually and as next friend of T'Erra

Brown and KeVon Brown; Mary F. Brown; Niesha Brown; Darlene Callis; Annie Cash; McCoy Cash; Charles

and Violet Ceasar; Artie and Ruth Ellis; Lorenzo Ellis; Charlie and Jean Faniel; Lenwood Gibson; Nicole

Greely; W illie Green; Mary Hargrove; Zedrick Hargrove; Arjorie Haynes; Kathy Heard; Robert and Jessica

Hearse, individually and next friend of Keyyaria Roberts; Ora M. Henderson; Frank and Ruth Herring; Percilla

Howray; Arbodeen James; Martha Johnson; Karrie Jones; Andrew Kimble; Lee and Phyllis Kimble; Donald

Lily; Shanetta Malone; Aritha Marshall; Levan and Perlie Marshall; Georgia Miller; Melissa Miller; Lee Edward

Miller, Jr. and Bernice Terrell; A.D. Moore, Jr.; Ellen Parson; Freddie and Dinah Roberts; James and Minnie

Roberts; Nathaniel Roberts; T.L. Robinson; Ralaunie Self; Victor Simmons, Jr.; Bryan Sparks; Rosalind

Taylor; Frankie Terrell; Gwendolyn Terrell, individually and next friend of W hitney Terrell; Joamika Terrell,

individually and next friend of Camary McCowan; Mollie Terrell; Eloise Thompson; LaKeshia Thompson; Marie

Thompson; Thomas Thompson; Zula Thompson, individually and next friend of Jada Thompson; Dora

Vasquez; Helen Ward; Clara Washington; Geraldine Washington; Phyllis W ashington, individually and next

friend of Troy W ashington and Troyla Washington; W alter and Betty W ashington; and Barbara Williams.

2

Appellants, in a consolidated lawsuit, brought various causes of action against 1

appellees, Reynolds Metals Company, Alcoa, Inc., RMC Extrusion, Inc., Bon L. Campo

Limited Partnership, Tredegar Corporation, and Whittaker Corporation, alleging property

damage, bodily injuries, and punitive damages. By one issue, appellants contend that the

trial court erred in granting a no-evidence summary judgment in favor of appellees because

they raised more than a scintilla of evidence that appellees damaged their property under

the theories of nuisance, negligence, and gross negligence. We affirm.

I. Background

This consolidated lawsuit involving over 1,200 plaintiffs, including the ninety-seven

appellants, was filed afterthe discovery of groundwater contamination by a chemical called

Trichloroethylene (TCE) in an area southwest of El Campo, Wharton County, Texas. In

the lawsuit, appellants alleged that the TCE originated at an aluminum extrusion facility in

El Campo–owned and operated by one or more of the appellees and other entities at

various times. 
 Plaintiffs, Delores and Martin Schnurpel, were not included in the trial court's order of severance, 2

but they are listed as appellants. Based on our review of the record, we conclude that they were listed as

appellants by mistake and are not parties to this appeal.

 It appears that appellants mistakenly listed "trespass" instead of "gross negligence" in the title to their 3

substantive point of error and in their prayer. See Martinez v. El Paso County, 218 S.W .3d 841, 845 (Tex.

App.–El Paso 2007, pet. dism'd) (providing that when we review a civil matter, we have "no discretion to

consider an issue not raised in the appellant's brief, even if the ends of justice so require."). There is no other

mention, briefing, or support for trespass in their argument. To the extent that appellants attempt to argue

that the trial court erred in granting the no-evidence summary judgment in favor of appellees on their claim

of trespass, they have not provided a clear and concise argument with citations to authority and the record.

Therefore, they have waived that argument. See TEX. R. APP. P. 38.1(h). W e note that this Court requested

and received re-briefing; however, appellants' amended brief offered no citations or arguments on a claim of

trespass.

3

On November 1, 2005, without stating the grounds, the trial court granted appellees'

various no-evidence motions for summary judgment. The trial court also granted

Tredegar's and Alcoa's motions for traditional summary judgment. On April 20, 2006, the

trial court ordered severance of the ninety-seven plaintiffs from the original case. On

2

appeal from the severance, appellants challenge only the trial court's grant of the noevidence summary judgments on their claims of nuisance, negligence, and gross

negligence.3

II. Tredegar's and Alcoa's Motions for Traditional Summary Judgment

Appellants do not contend that the trial court erred in granting the motions for

traditional summary judgment filed by Tredegar and Alcoa. See Martinez v. El Paso

County, 218 S.W.3d 841, 845 (Tex. App.–El Paso 2007, pet. dism'd) (providing that when

we review a civil matter, we have "no discretion to consider an issue not raised in the

appellant's brief, even if the ends of justice so require."). On appeal, Tredegar and Alcoa

argue that the judgment in their favor should be affirmed on that ground. We agree and

affirm the trial court's granting of Tredegar's and Alcoa's motions for traditional summary

judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (affirming
4

summary judgment if any of movant's theories are meritorious when the trial court did not

specify the grounds it relied on for its ruling). 

III. Standard of Review

Texas Rule of Civil Procedure 166a(i) provides that "a party without presenting

summary judgment evidence may move for summary judgment on the ground that there

is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof." TEX. R. CIV. P. 166a(i). In order to avoid

the no-evidence summary judgment, the nonmovant must produce more than a scintilla

of probative evidence that raises an issue of material fact on each element challenged.

Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 252 (Tex. App.–Corpus Christi 2001, pet.

denied); see TEX. R. CIV. P. 166a(i); Mack Trucks v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). More than a scintilla of evidence exists when the evidence "rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions." Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When reviewing a

no-evidence motion for summary judgment, we consider all of the evidence in the light

most favorable to the non-movant "crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not." City

of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We will affirm the summary

judgment if any of the movant's grounds are meritorious when the trial court has not

specified the ground or grounds it relied on for its ruling. Dow Chem. Co., 46 S.W.3d at

242.
 Appellees argue that appellants' sum m ary judgm ent evidence was incom petent. Appellants 4

respond that their sum m ary judgem ent evidence was com petent. For purposes of the analysis herein,

we assum e, without deciding, that appellants sum m ary judgm ent evidence was com petent.

5

IV. Discussion

By their sole issue, appellants contend that the trial court erred in granting a noevidence summary judgment in favor of appellees. Appellants assert that they raised more

than a scintilla of evidence for their claim that appellees damaged their property under

theories of nuisance, negligence, and gross negligence.4

A. Applicable Law

"A 'nuisance' is a condition that substantially interferes with the use and enjoyment

of land by causing unreasonable discomfort or annoyance to persons of ordinary

sensibilities attempting to use and enjoy it." Holubec v. Brandenburger, 58 S.W.3d 201,

210 (Tex. App.–Austin 2001), rev'd on other grounds, 111 S.W.3d 32 (Tex. 2003). In order

to recover on a nuisance claim, the defendant must have generally engaged in one of three

kinds of activity: (1) intentional invasion of another's interests; (2) negligent invasion of

another's interest; or (3) other conduct, culpable because abnormal and out of place in its

surroundings, that invades another's interests. Aguilar v. Morales, 162 S.W.3d 825, 836

(Tex. App.–El Paso 2005, pet. denied). A nuisance may arise by causing (1) physical harm

to property, such as by the encroachment of a damaging substance or by the property's

destruction; (2) physical harm to a person on his property from an assault on his senses

or by other personal injury; and (3) emotional harm to a person from the deprivation of the

enjoyment of his property through fear, apprehension, or loss of peace of mind. Id.
6

A claim of negligence requires that there is a legal duty owed to another, a breach

of that duty and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92

S.W.3d 450, 454 (Tex. 2002). Ordinary negligence is elevated to gross negligence by "the

mental attitude of the defendant." Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.

1981). A finding of gross negligence necessitates a finding of ordinary negligence. Shell

Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.–Houston [14th Dist.] 1994, writ

denied).

B. Analysis

1. Identification of Specific Elements in No-Evidence Motion

Appellants first complain that each of the no-evidence motions filed by appellees

should have been denied because they contained nothing more than conclusory

statements and general challenges to appellant's various claims. We disagree. Each noevidence motion explicitly asserted that there was no evidence for each specific element

of appellants' causes of action for nuisance, negligence, and gross negligence. See

Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.–Houston [14th Dist.] 2004, pet. denied)

(concluding that the no-evidence motion identified and addressed a specific element of

appellant's causes of action when appellee contended in her motion that there was no

evidence of causation). We conclude that appellees' no-evidence motions were not

conclusory and general; therefore, the trial court should not have denied the motions on

that basis. See TEX. R. CIV. P. 166a(i) cmt.
 Appellees challenge the validity of Prickett's affidavit and identify it as a document. However, for 5

the purposes of the analysis, we will refer to it as an affidavit.

7

2. Nuisance

By a broad contention, appellants also claim, without specific citation to the record

or authority, that more than a scintilla of evidence exists for their claim of nuisance.

Appellants assert that they "produced sufficient evidence to demonstrate that their

individual properties [were] impacted and/or contaminated by TCE" through the affidavit

of their testifying expert, Thomas Prickett, who claims that he "demonstrated an additional

plume, which had its genesis in a leak from a sewer line." Appellees respond that the

affidavit does not provide any evidence that any particular appellant had an interest that 5

was affected by the TCE contamination. We agree with appellees.

In his affidavit, Prickett refers to a map that he alleges shows where the plaintiffs

listed in the Adamcek Amended Petition live. However, Prickett does not suggest that any

of the appellants own an interest in the property within the additional plume he

"demonstrated," and Prickett does not designate which properties or whose interests were

in fact affected by the TCE under his theory. At best, this evidence may have created a

mere suspicion that some of the appellants have an interest in the areas circled on the

map. This suspicion, however, does not rise "to a level that would enable reasonable and

fair-minded people to differ in their conclusions" that appellants' interests were in fact

impacted or contaminated by the TCE as they claim. See Merrell Dow Pharms., Inc., 953

S.W.2d at 711. Therefore, we cannot conclude that appellants produced more than a

scintilla of probative evidence that raised an issue of material fact, see Oasis Oil Corp., 60
8

S.W.3d at 252, that appellees engaged in intentional, negligent or other conduct that

amounted to an invasion of appellants' interests or caused physical harm to their property.

See Aguilar, 162 S.W.3d at 836. Appellees' no-evidence motions for summary judgment

were properly granted with respect to appellants' claim of nuisance. See Dow Chem. Co.,

46 S.W.3d at 242.

3. Negligence

Next, without citing to the record or providing any authority, appellants argue that

more than a scintilla of evidence exists for their claim of negligence on the elements of

duty, breach of duty, and damages. On appeal, however, appellants do not contend that

they produced more than a scintilla of evidence raising an issue of material fact regarding

the element of proximate causation. D. Houston, Inc., 92 S.W.3d at 454 (setting out the

elements of negligence as duty, breach, proximate cause, and damages). See id. By

failing to challenge the trial court's finding on proximate cause, appellants have waived any

error. See Dallas v. Dallas Morning News, L.P., 180 S.W.3d 921, 923 (Tex. App.–Dallas

2005, no pet.) ("If the appellant does not challenge one of the grounds for summary

judgment, the judgment may be affirmed on that ground alone."); see also Martinez, 218

S.W.3d at 844 ("When reviewing a civil matter, an appellate court has no discretion to

consider an issue not raised in the appellant's brief, even if the ends of justice require it.").

Therefore, the trial court did not err in granting the no-evidence summary judgment in favor

of appellees on the basis that there was no evidence of proximate causation. See Dow

Chem. Co., 46 S.W.3d at 242. Moreover, because we have concluded that the trial court

properly granted the no-evidence summary judgments as to the negligence claim, there
9

could be no finding of gross negligence. See Shell Oil Co., 880 S.W.2d at 174; see also

Burk Royalty Co., 616 S.W.2d at 922.

4. Stigma Damages

Appellants further contend, without citation to the record or authority, that the trial

court was incorrect in granting appellees' motions for summary judgment on their claims

for stigma damages. Because appellants, even after this Court requested re-briefing, have

not provided a clear and concise argument with citations to authority and the record on

their assertion of stigma damages, they have waived this argument. See TEX. R. APP. P.

38.1(h).

We overrule appellants' sole issue. See Dow Chem. Co., 46 S.W.3d at 242.

V. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and 

filed this 24th day of April, 2008.